Opinion
No. CV 10 6007669S
May 27, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS #141
I FACTS
On January 25, 2010, the plaintiff, Preston Kinsey, filed a three-count complaint against the defendant, Ford Motor Credit Company, LLC, alleging statutory larceny, defamation of credit, and violations of the Connecticut Unfair Trade Practices Act (CUTPA). On March 31, 2010, the defendant filed a combined motion to strike and motion to dismiss. On April 16, 2010, and then again on May 27, 2010, the defendant reclaimed the motion. Thereafter, on June 8, 2010, the plaintiff reclaimed the motion. On July 23, 2010, the plaintiff filed a certificate of closed pleadings. On June 29, 2010, the defendant again reclaimed the motion. By order dated August 12, 2010, the motion was set down for oral argument on September 13, 2010. The motion was thereafter continued to November 15, 2010, and the defendant was ordered to separate the motions. On October, 14, 2010, the defendant filed a motion to dismiss counts one and three of the plaintiff's complaint. The court decided the defendant's motion to dismiss on December 22, 2010, denying the motion as to count one but granting the motion as to count three. On February 7, 2011, the defendant filed an answer and special defenses to count one of the plaintiff's complaint as well as a counterclaim.
On April 27, 2010, the plaintiff withdrew count two of the complaint.
On February 10, 2011, the defendant filed the present motion to dismiss (#141) along with a supporting memorandum of law. The defendant moves for dismissal on the ground that the plaintiff filed a certificate of closed pleadings when he could not have believed that the pleadings were closed. The plaintiff did not file an objection to the defendant's motion to dismiss. The matter was heard on the February 28, 2011 short calendar, at which the plaintiff did not appear.
II
CT Page 12490
DISCUSSION A Motion to Dismiss Standard
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). "A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Wilcox v. Webster Ins., Inc., 294 Conn. 206, 213, 982 A.2d 1053 (2009). Practice Book § 10-31(a) states: "The motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, and (5) insufficiency of service of process. This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record."B Analysis
The defendant moves to dismiss the plaintiff's complaint on the ground that the plaintiff improperly filed a certificate of closed pleadings and therefore failed to prosecute the action with reasonable diligence. Specifically, the defendant argues that the plaintiff could not have believed that the pleadings were closed when he certified such because (1) the defendant had served a motion to dismiss that had not yet been decided; and (2) the defendant had not yet answered the complaint. According to the defendant, a complaint is subject to dismissal where a certificate of closed pleadings is improperly filed.
There is scant case law on this issue but the Connecticut Appellate Court has held that falsely filing a certificate of closed pleading may be grounds for dismissal for failure to prosecute with due diligence. See Bongiovanni v. Saxon, 99 Conn.App. 221, 913 A.2d 471 (2007). In Bongiovanni, the plaintiff filed a certificate of closed pleadings in an attempt to comply with the court ordered deadline for filing the certificate of closed pleadings. Id., 223. "Upon filing the certificate of closed pleadings, the plaintiff certified that the pleadings had been closed. In addition, the plaintiff certified that he acknowledged that his failure to certify accurately would subject him to sanctions." Id. "[T]he defendants filed a motion to dismiss . . . with prejudice, on the ground that [the plaintiff] falsely filed a certificate of closed pleadings when the pleadings had not yet been closed. At the time the plaintiff filed the certificate, the defendants had not filed an answer to the plaintiff's amended complaint." Id. The trial court granted the motion to dismiss and the Appellate Court upheld its ruling. Id., 224, 226.
Pursuant to Practice Book § 14-3(a), "[i]f a party shall fail to prosecute an action with reasonable diligence, the judicial authority may, after hearing, on motion by any party to the action pursuant to Section 11-1, or on its own motion, render a judgment dismissing the action with costs."
According to the plaintiff's counsel, he " assumed that [the pleadings] were [closed] based on the age of [the] case and the amount of pleadings that had been filed . . ." (Emphasis in original; internal quotation marks omitted.) Id., 225. The plaintiff's counsel had no basis to believe that the pleadings were closed, but rather took literally the court order that he needed to file the certificate of closed pleadings by a certain date and so he did. Id. The Appellate Court found that "the plaintiff's counsel was not attentive to the state of the pleadings, and, as a result, he filed a certificate of closed pleadings without knowledge of the status of those pleadings." Id. Consequently, the trial court's dismissal of the action was proper. Id., 226. The Appellate Court also held that the dismissal of the action with prejudice was a proper sanction. Id.
The present case is analogous to Bongiovanni. Here, the plaintiff filed a certificate of closed pleadings prior to the resolution of an outstanding motion to dismiss and without the defendant having answered the complaint. The plaintiff has not objected to the defendant's motion to dismiss based on the improper filing of the certificate of closed pleadings and the plaintiff did not attend oral argument on this issue. Thus, the plaintiff has not provided the court with any evidence that he had a reasonable basis to believe that the pleadings were closed prior to filing the certificate of closed pleadings. Accordingly, the court grants the motion to dismiss.
It is worth noting, however, that the defendant's argument that the plaintiff filed the certificate of closed pleadings prior to the resolution of the defendant's motion to dismiss the third count of the plaintiff's complaint is poorly set forth in its memorandum of law. According to the defendant, the plaintiff filed the certificate of closed pleadings even though a motion to dismiss had been served but not decided. Appended to the defendant's memorandum of law, and referenced therein, is a motion to dismiss filed on October, 14, 2010, and decided by the court on December 22, 2010. Based on the information as presented by the defendant, his argument could not stand as July 23, 2010 is prior to October 14, 2010. Nonetheless, a careful review of the filings in this case reveals that there was an outstanding motion waiting to be decided at the time the plaintiff certified the pleadings as closed.